Can I Get My Record Expunged in Massachusetts?

A criminal record can make it nearly impossible to get a job or even rent an apartment in Massachusetts. Employers, landlords and other parties frequently conduct background checks or ask applicants to disclose any criminal history. But there is a legal mechanism available to seal your criminal record, making information regarding certain past convictions unavailable to the general public. While it is not possible to erase the conviction altogether, if you legally seal the record, you no longer have to disclose that conviction in response to an inquiry.

“It’s a fairly liberal statute, and a lot of people don’t realize how easy it is to get a fresh start,” says Michelle R. Peirce, a criminal defense attorney with Donoghue Barrett & Singal in Boston, “which is the whole point.”

Sealing vs. Expungement

You may have heard the term “expunge” used interchangeably with “seal.” They are, in fact, distinct legal concepts. When a record is expunged, it is actually erased or destroyed by the custodial law enforcement agency. It is as if the entire incident never took place.

In Massachusetts, expungement is only available in cases involving a false conviction that was later reversed. In all other situations, a criminal record can only be sealed and not expunged. Sealing a record does not erase it, but as noted above, it does restrict public access.

More precisely, under Chapter 276, Section 100A, if your criminal record has been sealed, state officials will respond to public inquiries by stating no conviction exists.

“It’s largely removed from their record, other than for law enforcement purposes and some employers,” Peirce says. “It can’t be retrieved in most employment circumstances. You’re allowed to respond, when asked on an application, something to the effect of ‘no record of conviction.’ The hope is it allows people to get out from under the weight of their history and get a fresh start.”

Likewise, you can legally refuse to disclose a sealed conviction if asked about it. And although the records remain accessible to law enforcement, a sealed conviction cannot be used as evidence to convict you of a future crime—although it may be taken into consideration as part of sentencing following a new conviction.

How Do I Seal My Record?

While some states require a judge to hold a hearing before ordering a criminal record sealed, the process is far less complicated in Massachusetts. In most cases all you need to do is give a form to the Commissioner of Probation.

“Even though the statute reads like it’s self-enforcing—in other words

that the court will seal certain records automatically—that’s not the case,” Peirce says. “From a lawyer’s perspective, it’s really something they ought to be alerting their clients to. In some instances, the clients may be able to seal it right away; for others, depending on the type of conviction, you might have to wait a certain period of time to become eligible.”

If you were convicted of a crime, there is a mandatory waiting period after incarceration, depending on the nature of the conviction:

For juvenile delinquency offenses, three years;

For adult misdemeanor convictions, five years;

For adult felony convictions, 10 years;

For sex offense convictions involving a level 1 sex offender, 15 years plus the termination of any duty to register as a sex offender.

During the applicable waiting period, you cannot have any additional convictions or findings of delinquency in any court.

In cases where you were found not guilty or your charges were dismissed, you can ask a judge to seal the record immediately without a waiting period. This, however, requires filing a petition with the district court where you were charged. If, for some reason, the judge does not oblige your request, you may file again. If after repeated filings your record remains unsealed, the probation office will seal it if you’ve met the same prerequisites of someone who was convicted.

There are also some offenses—such as intimidating a witness and resisting arrest—for which the record cannot legally be sealed regardless of how much time has passed since your conviction.

A qualified Massachusetts criminal defense attorney can advise you on how to go about sealing your criminal record or pursue any other post-conviction relief. The probation office (at 617-727-5300) will also happily guide you through the filing process. Keep in mind, sealing a criminal record does not affect the loss of your civil rights following a conviction. For that you may need to seek an executive pardon from the governor’s office.

Massachusetts

Massachusetts allows most criminal convictions to be sealed following a mandatory waiting period, which can vary between three and 15 years depending on the type of offense.

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